Kipp v. Laun

Decision Date02 May 1911
Citation146 Wis. 591,131 N.W. 418
PartiesKIPP v. LAUN ET AL.
CourtWisconsin Supreme Court

OPINION TEXT STARTS HERE

Appeal from Circuit Court, Milwaukee County; Warren D. Tarrant, Judge.

Action by B. A. Kipp against J. B. Laun and another. Judgment for plaintiff, and defendants appeal. Affirmed.N. L. Baker and W. J. Zimmers, for appellants.

Paul D. Durant, for respondent.

TIMLIN, J.

The undisputed evidence and the findings of the circuit court establish that the plaintiff, on and prior to September 9, 1909, was, and for about 30 years had been engaged in the manufacture and sale of furniture, and owned two desirable tracts of real estate, one vacant and the other occupied by the factory buildings. Since 1894 the plaintiff's furniture business was carried on by him in the name of a corporation called the B. A. Kipp Company, and this company was an active, going concern, and used and occupied the buildings on the plaintiff's land above mentioned. Desiring to retire from business, the plaintiff authorized a real estate agent to effect a sale of the plaintiff's interest in this corporation, which was practically the whole thereof, and, if necessary, to sell and dispose of said real estate on condition that the purchaser should also take the plaintiff's interest in said manufacturing corporation.

The findings further were to the effect that defendants were also engaged in the manufacture of furniture at Kiel, Wis., and were introduced to the plaintiff and entered into negotiations with him relative to the purchase of the real estate aforesaid, and the capital stock, good will, business property, and assets of the said B. A. Kipp Company. On September 9, 1909, these negotiations terminated in an entire and indivisible parol contract, whereby, for the sum of $82,000, payable $5,000 in cash, $15,000 on January 1, 1910, and $62,000 in five years, with interest at 5 per cent. per annum, to be evidenced by notes and secured, plaintiff sold to defendants the real estate above referred to, and agreed to execute and deliver to them a land contract for the sale and conveyance thereof upon the payment of the said $15,000 on January 1, 1910, and sold all the property and assets of the B. A. Kipp Company, exclusive of its bills and accounts receivable, and agreed to deliver, on October 1, 1909, the entire issued and outstanding capital stock of said company, all for the fair value of the stock in trade, merchandise, fixtures, property, and assets of the B. A. Kipp Company, exclusive of its bills and accounts receivable. The mode of payment for this corporate property, which was all personal property, was $5,000 on October 1, 1909, and $5,000 on the first of each and every succeeding month thereafter, until the purchase price, being the fair value, as aforesaid, should be all paid.

September 11, 1909, this agreement was modified by providing that the $15,000 item should be paid as soon as the abstracts were examined, the land contract omitted, and a deed executed to the defendants, who thereupon would execute and deliver their promissory notes, aggregating $62,000, secured by a mortgage on the real estate so conveyed. On this day an instrument, called therein a “receipt,” was executed, which acknowledged the receipt of $5,000 as part of the purchase money of the real estate (describing it), provided that $15,000 should be paid on September 16th, and that the plaintiff should then execute and deliver to defendants a warranty deed, whereupon the latter were to give back mortgages. This receipt provided, further, that possession of all the real property be given to the defendants on October 1, 1909. (It does not mention the personal property at all, nor hint at any existing contract regarding the latter property.) The parties met on September 16th, and the defendants represented that they would carry out and perform the parol contract first mentioned, and relying on this the plaintiff, for the purpose of carrying out and performing on his part the terms, provisions, and conditions of said oral contract, executed to the defendants a warranty deed of the lands. The latter executed to the plaintiff the notes and mortgages. The plaintiff released all interest due on the deferred payments from September 16th to October 1st. The defendants agreed that the B. A. Kipp Company should have the use and occupancy of the premises until October 1st, and the sale of said real estate and premises by plaintiff to defendants was conditioned on the purchase by defendants of the business property, assets, and capital stock of the B. A. Kipp Company, and their taking and assuming the management and control of its business and affairs on October 1, 1909.

The inducement offered plaintiff to sell and dispose of his real estate was the agreement of defendants to purchase and take over the B. A. Kipp Company, paying the plaintiff therefor an amount equaling the fair value of the merchandise, stock in trade, machinery, fixtures, equipment, property, and assets whatsoever of said company, excepting its bills and accounts receivable, as the same appeared on October 1, 1909. Both parties intended that the purchase and sale of the real estate of plaintiff and of the business property and assets of the B. A. Kipp Company were commonly dependent upon each other, and that the sale by the plaintiff of the real estate to defendants was dependent upon the purchase by defendants from plaintiff of the business assets and capital stock of the B. A. Kipp Company. Plaintiff went on and completed an inventory of the property, etc., of the B. A. Kipp Company, and the valuation thereof, and delivered the same to the defendants.

Prior to this time, defendants had entered upon the real estate and taken possession thereof, and begun the erection of a factory building on the vacant portion thereof. On October 4, 1909, the plaintiff made a tender to the defendants, and again on November 1, 1909. Defendants refused to carry out the contract for the purchase of the personal property, while holding on to the real estate.The defense was that the only contract entered into between plaintiff and defendant was that in writing, called the “receipt,” of September 11, 1909, wherein and whereby the plaintiff agreed to sell to the defendants and the defendants to buy, for the sum of $82,000, said real estate.

The findings of the trial court, it must be confessed, make a pretty formidable case against appellants; but they contend that the court erred in admitting and considering parol testimony to modify and change the terms and conditions of a written instrument, and to establish this parol agreement which, to be valid, was required by the statute of frauds to be in writing. Rejecting this parol evidence, they further contend there is not sufficient evidence to support the findings of the court. In this last proposition, appellants are undoubtedly correct. But was the parol evidence properly admitted?

[1] In an action to enforce specific performance of an oral contract, taken out of the statute of frauds by part performance, proof of the oral contract, as well as of the part performance, is essential, notwithstanding the oral contract would be utterly void but for the part performance. In such case, where there is no writing, if the court should exclude evidence of the terms of the oral contract, the part performance would be quite immaterial. But that is not the case here. The part performance here may have been not a part performance of the oral contract claimed by the plaintiff, but a part performance or entire performance of a separate and independent contract, which had no legal connection with the alleged oral contract. It will be best to consider the admissibility of the testimony under the rule excluding parol evidence, before taking up the questions arising under the statute of frauds, for these are separate and distinct questions.

[2] The rule that excludes parol evidence of oral agreements or stipulations, when offered to add to modify or contradict a written contract, is subject to some exceptions. Among these are the following: (1) If the writing is shown by competent evidence to have been a mere part of an entire oral contract, and the oral contract is not inconsistent with and does not contradict the writing, and the writing does not on its face plainly purport to contain the entire contract, then parol evidence of the oral contract is admissible. Corbett v. Joannes, 125 Wis. 370, 104 N. W. 69;Cuddy v. Foreman, 107 Wis. 519, 83 N. W. 1103;Mueller v. Cook, 126 Wis. 504, 105 N. W. 1054;Braun v. Wisconsin Rendering Company, 92 Wis. 245, 250, 66 N. W. 196. (2) Where there is a distinct, contemporaneous parol agreement and one of the parties seeks to make use of a written agreement for purposes inconsistent with the parol agreement, and under such circumstances as to render such use fraudulent. Braun v. Wis. Rend. Co., 92 Wis. 250, 66 N. W. 196;Juilliard v. Chaffee, 92 N. Y. 529. These exceptions are purposely stated narrowly, because we are not here attempting to define their limits or set bounds to their operation, but merely to inquire whether the instant case is within these exceptions as here written.

[3] A case cannot be brought within the first exception by oral evidence of the language used by the parties in their negotiations or in their alleged contract, where relief is not sought on the ground of fraud or mistake, and the parties stand upon the contract and do not seek a rescission or reformation. The boundary lines of the second exception are not yet well settled; but it includes a case where the pleading makes a claim that the written agreement is being made use of for purposes inconsistent with a parol agreement, and under such circumstances as to render such use fraudulent. This is in the nature of a direct attack upon the use attempted to be made of the written instrument. The parol evidence to prove the contract established by the findings of the circuit court in the...

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    • United States
    • United States State Supreme Court of Wisconsin
    • 10 Enero 2006
    ...questions not argued will not be considered or decided) (citing Fisher v. Herrmann, 118 Wis. 424, 95 N.W. 392 (1903); Kipp v. Laun, 146 Wis. 591, 131 N.W. 418 (1911)). ¶ 27 Schulpius additionally asks this court to decide whether or not Morford should be applied retroactively. Because we co......
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    ...likewise enforced. Their rights are mutual as to remedies." Even then, the rule was well established in Wisconsin. See Kipp v. Laun, 146 Wis. 591, 602, 131 N.W. 418 (1911) ("[T]he rule exists that specific performance may be had at the suit of the vendor of land wherein the vendee is decree......
  • Laun v. Kipp
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    • United States State Supreme Court of Wisconsin
    • 13 Enero 1914
    ...circuit court, which order sustained a demurrer to the complaint, and my concurrence rests upon the following grounds: In Kipp v. Laun, 146 Wis. 591, 131 N. W. 418, this court affirmed a judgment of the circuit court which among other things provided for a reference and an accounting in thi......
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